Delhi District Court
Mahender Kumar Saini vs The State Of Nct Of Delhi on 11 March, 2014
IN THE COURT OF Ms. ANU MALHOTRA : DISTRICT &
SESSIONS JUDGE (WEST) : DELHI
Crl. Appeal No. 25/2013
Unique ID No. 02401C0461862013
Mahender Kumar Saini,
S/o Shri Ratan Lal,
R/o 9031, Siddi Pura,
Karol Bagh, New Delhi .........Appellant
Versus
The State of NCT of Delhi ..........Respondent
Date of Institution : 11.09.2013
Date of pronouncement : 11.03.2014
AND
Crl. Appeal No. 26/2013
Unique ID No. 02401C0469082013
Ramesh Kumar Pandey
S/o Shri Brij Bhushan
R/o C246, Vandana Vihar,
New Delhi ......... Appellant
Versus
State ......... Respondent
Criminal Appeal Nos. 25/2013 & 26/2013 Page 1/16
Date of Institution : 12.09.2013
Date of pronouncement : 11.03.2014
JUDGMENT
This Judgment shall dispose of the Criminal Appeal No. 25/2013 and Criminal appeal No. 26/2013 against the impugned judgment and sentence of the dated 26.08.2013 and 31.08.2013 respectively of the MM03 (West). Criminal Appeal No. 25/2013 has been filed by the appellant Mahender Kumar Saini on 11.09.2013 and the Criminal Appeal No. 26/2013 has been filed by the appellant Ramesh Kumar Pandey on 12.09.2013. Both the appellants assail the same judgment and sentence in relation to FIR No. 39/1999 PS Nangloi whereby the two appellants were convicted for the commission of an offence punishable under Section 292 r/w 34 of the IPC, 1860.
Whereas the appellant Mahender Kumar Saini was sentenced to simple imprisonment of a period of six months and to pay a fine of `200/ and in default of the payment of the said fine to further simple imprisonment for a period of two days, the appellant Ramesh Kumar Pandey were sentenced to simple imprisonment for one year and to pay fine of `200/ and in default of the payment of the fine to undergo simple imprisonment for two days. Both the appellants are indicated vide the impugned order on sentence dated 31.08.2013 to Criminal Appeal Nos. 25/2013 & 26/2013 Page 2/16 have deposited the fine. Both appellants were granted the benefit of Section 428 of the Cr.P.C. 1973.
Vide the said judgment the Ld. trial Court has also directed the DCP's concerned to take appropriate action against the Investigating Officer and forwarding authorities against Mr. Ram Sanjeevan Mishra and to the owner of Lokesh Cinema.
The allegations against the accused persons are that on 14.01.1999 at 06:30 PM to 08:30 PM at Lokesh Cinema Hall, Main Rohtak Road, Nangloi, New Delhi, the accused persons namely Mahender Kumar Saini, Ramesh Kumar Pandey and Ram Baran Thakur (since PO) in furtherance of their common intention indulged in exhibiting a movie namely "vkne'kkL=" interspersed with the nude scenes of a blue film.
In order to prove its case, prosecution has examined four witnesses: PW 1 HC Jagmer PW 2 Ct. Devender, PW 3 Raj Kumar PW 4 Inspector Raj Kumar The accused stated that they were innocent and claimed that they have been falsely implicated in this case. The accused persons opted not to lead evidence in their defence.
Criminal Appeal Nos. 25/2013 & 26/2013 Page 3/16
The contention raised by the appellants that no public persons were joined in the investigation and that thus the allegations levelled against them did not stand established was rejected by the Ld. trial Court observing to the effect that the public in general is reluctant to come forward to depose before the Court and has an in different attitude in the investigation of the case. The Ld. trial Court also placed reliance in relation thereto on the observations of the Hon'ble Supreme Court in "Ajmer Singh Vs. State of Haryana" 2010 AIR SCW 1494, Hon'ble Supreme Court of India, "Karamjit Singh Vs. State (Delhi Administration) AIR 2003 Supreme Court 1311, Hon'ble Supreme Court of India, "State of U.P. Vs. Anil Singh" AIR 1988, Hon'ble Supreme Court of India"
The other contentions raised on behalf of the appellants were that there was no documentary proof filed on record to prove that they were employees in Lokesh Cinema and there was no document on record to establish that the accused i.e. the appellant herein Mahender Kumar Saini was the Manager of Lokesh Cinema, that the date of the show was not mentioned in the ticket Ex. PX1 collectively and the alleged DD No. 11 regarding departure of Police officials was not on the record.
Criminal Appeal Nos. 25/2013 & 26/2013 Page 4/16
It was also contended that PW 4 wrongly identified the accused Ramesh Kumar Pandey as Ram Baran Thakur, that though PW 4 i.e. the Investigating Officer had deposed that he had recorded the statement of Manager Ram Sanjeevan Mishra, the same was not on the record and that thus it is established that they had been falsely implicated in the instant case. All the said contentions were rejected by the Ld. trial Court observing to the effect that in the cross examination of PW 4 the accused persons had given the suggestion that they were ticket checkers and torch men in the cinema hall and thus the presence of the accused persons in the Cinema hall at the date and time alleged stood established and that the factum that the ticket did not bear the date of the show and that the DD entry regarding departure of the police was not produced was of no assistance to the accused.
It was further held by the Ld. trial Court that PW 2 and PW 4 had deposed that after the end of the film, they went to the projector room where they met the accused Mahender Kumar Saini, Ramesh Kumar Pandey and Ram Baran Thakur and in crossexamination PW 4 deposed that Mahender Kumar Saini was also apprehended with the other accused persons from the projector room and that the said evidence of the two witnesses had remained unrebutted and it was Criminal Appeal Nos. 25/2013 & 26/2013 Page 5/16 thus held by the Ld. trial Court that even though there was no document on the record that the accused Mahender Kumar Saini was the Manager and that the accused Ramesh Kumar was the employee, it was no help to the accused persons when they were publicly exhibiting the film in question.
It was further held by the Ld. trial Court that PW 2, the Constable Devender one of the members of the raiding party had correctly identified the two accused persons and thus merely because PW 4 had wrongly identified one of accused Ramesh Kumar Pandey and Ram Baran Thakur the same was of no assistance to the accused.
The Ld. trial Court also rejected the contention of the accused that as the reels had neither been got examined from the CFSL for addition of the reels nor any certificate of the competent authority was on the record to prove that the scenes were obscene was in consequential if the scenes as seen by the naked eyes were obscene.
The Ld. trial Court observed that since the cutting and addition of the reels could be seen with the naked eyes, no useful purpose would have been served by examination by the CFSL qua the additions. The Ld. trial Court also referred to the testimony of PW 3 who had deposed that he had handed over the reels of the film "vkne'kkL=" to the Manager, and that it did not have any blue/obscene Criminal Appeal Nos. 25/2013 & 26/2013 Page 6/16 scenes and there was a Censor certificate to that effect Ex. PW 3/A and that he had deposed that he had distributed the said film to the other cinema hall also and he had not received any complaint to that effect that there was objectionable obscene scenes in it, from other cinema halls. The Ld. trial Court that the testimony of PW 3 has remained unrebuttal and that the defence taken by the accused person in crossexamination was an afterthought and that the contention thus raised on behalf of the accused was devoid of force.
The contention raised by the accused that there was no certificate of a competent authority to prove or establish that the scenes added were in fact obscene scenes was not accepted by the Ld. trial Court observing to the effect that as laid down by the Hon'ble Supreme Court in the cases "Ranjit D. Udeshi Vs. The State of Maharashtra" AIR 1965, Hon'ble Supreme Court of India, the test applicable to ascertain whether the material in question was obscene or not is an ordinary man of common sense and prudence and not an out of the ordinary or hypersensitive person. It was further observed by the Ld. trial Court that the scene in question as described, in the opinion of that Ld. Court from a point of view of a man ordinary prudence are obscene and were lescivious and were of prurient interest and could deprive and corrupt persons who would likely to see and Criminal Appeal Nos. 25/2013 & 26/2013 Page 7/16 hear them.
Vide the impugned judgment of the Ld. trial Court observe that there was a case whether the man culprit has been left by the Investigating Agency and the minor employees who was present in the Cinema hall were made accused in the case.
Vide the said impugned judgment the Ld. trial Court has directed the issuance of summons to Mr. Ram Sanjeevan Mishra, Manager of the Lokesh Cinema and to the owner of the Lokesh Cinema for the alleged commission of offences punishable under Sections 292(2)(a) of the IPC 1860 r/w 7(1)(b) of the Cinematograph Act 1952 qua Ram Sanjeevan Mishra and to the owner of the Lokesh Cinema qua the alleged commission of the offence punishable under Section 292 (2)(c) of the Indian Penal Code 1860 and 7(1)(b) of the Cinematograph Act 1952 under Section 319 of the Cr.P.C. 1973 stand trial, in view of the verdict of the "Hon'ble Supreme Court in the case Dayal Singh Vs. State of Uttaranchal" (2012) 8 SC 263, Hon'ble Supreme Court of India.
The records of the Ld. trial Court have been perused and received.
Notice of the appeal was issued to the State.
Arguments were addressed on behalf of the appellants by Criminal Appeal Nos. 25/2013 & 26/2013 Page 8/16 the learned counsel Shri Manmohan Goel and on behalf of the State by the Ld. Chief Public Prosecutor Shri Ramesh Kumar.
A perusal of the trial Court record indicates that the charge sheet in the instant case was filed against three person i.e. the present appellants Manmohan Singh and Ramesh Kumar Pandey and also against Ram Baran Thakur who during the course of trial has been declared a proclaimed offender.
As per the prosecution version set forth in the chargesheet Inspector Ashok Tyagi, SI Raj Kumar, ASI Charan Singh, ASI Jai Bhagwan, ASI Jai Kishan, Head Constable Ram Kishan, Constable Raja Ram, Constable Sanjay, Constable Devender Kumar, Constable Dev Raj and 1/2 other persons on receipt of secret information by Inspector Ashok Tyagi that a film by the name of "vkne'kkL=" was being shown at the Lokesh Cinema at Nangloi and there were some blue film clips added to the said film, on information the raiding party reached the Lokesh Cinema in civil uniform and took 10 tickets for Rs. 30 each. The said raiding party is stated to have entered into the cinema hall and the movie started about 06:30 PM and after about 20/25 minutes the picture clip of the blue film was picturized which was of 3 to 4 minutes, followed by two more obscene scenes and after the end of the film the raiding party went to the project room and met Mr. Mahender Singh Saini, the appellant of Criminal Appeal No. Criminal Appeal Nos. 25/2013 & 26/2013 Page 9/16 25/2013 the Manager and the Project operators Ram Baran Thakur (since declared PO) and Ramesh Kumar Pandey, who is the appellant of Criminal Appeal No. 26/2013 and the said film was again got rewound when the hall got empty and it was observed that the obscene scenes had been inserted into the movie at Srl. Nos. 2, 3 and 5, there have been five rolls of the movie and all the 5 rolls were sealed with the seal of RKD and seized vide seizure memo Ex. PW 4/A1 and the seal after use was handed over to ASI Charan Singh.
The testimony of the Investigating Officer Inspector Raj Kumar examined as PW 4 also indicates that on 18.01.1999, the distributor Shri Raj Kumar told them that the film had been handed over to the Manager Shri Ram Sanjeevan Mishra at that time and at that time there was no clip of any blue film and the said Ram Sanjeevan Mishra had handed over the film to the accused Mahender Kumar Saini i.e. the appellant of the Criminal Appeal No. 25/2013 and at that time there was no obscene clip in the film.
As per the statement of the Investigating Officer statements of witnesses were also recorded under Section 164 of the Cr.P.C. 1973.
During the course of arguments addressed on behalf of the appellants it was submitted that the submissions that had been made before the Ld. trial Court were reiterated to contend that no public Criminal Appeal Nos. 25/2013 & 26/2013 Page 10/16 witness had been joined into the proceedings, that the film contained no blue scene, that it had been given an 'A' certificate, that the rolls had not been sent to the FSL to show additions into the initial rolls that the Manager Ram Sanjeevan Mishra had not been cited to whom the film had been handed over by Mr. Raj Kumar PW 3 the distributor and had not been examined as a witness, that the 10 tickets produced by the Investigating Agency did not bear the date to indicate that the date of alleged occurrence was on 14.01.1999, that though the Investigating Officer stated that he recorded statement of witnesses under Section 164 of the Cr.P.C. 1973, no such statement were there on the record nor was any Metropolitan Magistrate cited as a witness, that DD No. 11 the departure entry of the police had not been produced, that the staff roster of the Lokesh Cinema was not produced, that the appointment letters of the accused persons had not been produced and that as observed by the Ld. trial Court itself the ultimate beneficiaries had not been arrested nor was there any record of the cinema hall produced to indicate that the appellants were on duty or not.
On behalf of the State it was submitted that the available record through the testimony of the prosecution witnesses brought forth the implicit connivance of the two appellants herein in publicizing the obscene clips interspersed into the movie "vkne'kkL=" on Criminal Appeal Nos. 25/2013 & 26/2013 Page 11/16 the date 14.01.1999 during the 06:30 PM show at the Lokesh Cinema and that the appellants were guilty of the proved commission of the offence punishable under Section 292(a) of the IPC 1860, in as much as they were found in the project room when the movie was being picturized.
ANALYSIS On a consideration of the entire available record and the rival pleas addressed on behalf of either side, the Court is of the considered view that the presence of the two appellants in the Projector Room of the Lokesh Cinema, Main Rohtak Road, Nangloi within the jurisdiction of PS Nangloi on 14.01.1999 between 06.30 p.m. to 08.00 p.m. whilst the movie "vkne'kkL=" was being publicly exhibited in the Cinema Hall with the members of the public watching the same, which movie was interspersed with obscene scenes, as detailed in the FIR, stands established.
The available record through the testimonies of the prosecution witnesses also establishes that the scenes interspersed in the reel Nos. 2, 3 and 5, out of 5 reels of the movie were obscene, in as much as the said scenes were to the effect that after 2025 minutes of the time of the start of the movie, one scene flashed in which a Criminal Appeal Nos. 25/2013 & 26/2013 Page 12/16 black person was featured touching the private parts of a lady and the lady was sounding a noise as if highly stimulated by such touching and thereafter before 0810 minutes of the interval, another scene also came there in which lady was featured completely nude on the upper portion of the body and a male hand was featured touching the breast of the female.
Another obscene scene came 0810 minutes before the final ending of the movie and in this scene also the lady was nude from the upper portion and the male person was featured half nude in a compromising position with the lady so featured, which apparently have to be held to be obscene and lascivious and are of prurient interest and can deprave and corrupt the persons seeing and hearing the matter contained in it.
The nonjoinder of the members of the public, who were watching the movie into the investigation of the case does not detract from the veracity of the prosecution version, as the persons who were watching the movie would not join in the investigation out of fear. The testimony of Inspector Raj Kumar, the Investigating Officer of the case is categorical that he had tried to ask the public persons to join the investigation, but they did not agree and left the spot without disclosing their names and addresses, after completion of the movie. As rightly held by the learned trial Court the presence of the two Criminal Appeal Nos. 25/2013 & 26/2013 Page 13/16 appellants having been established at the time of alleged occurrence in the Projector Room and consequential display of the movie "vkne'kkL="
with obscene clippings therein can only be held to be with the knowledge and intent of the appellants to so publicly exhibit the same. In view thereof, the factum that the tickets seized by the Investigating Officer did not bear the date of the show is insufficient to exonerate the accused. The nonproduction of the statements under Section 164 of the Cr.P.C., 1973 of the witnesses stated to have been recorded by the Investigating Officer also in the circumstances does not suffice to exonerate the appellants, as the testimonies of the prosecution witnesses examined suffice to bring forth the allegations levelled against the two appellants as all the witnesses have understood the test of crossexamination.
It is thus held that there exists no infirmity in the impugned judgment against the two appellants Mahender Kumar Saini and Ramesh Kumar Pandey convicting them for committing the offence punishable under Section 292 (a) of the IPC, 1860.
QUANTUM OF SENTENCE As regards the impugned sentence whereby the appellant Criminal Appeal Nos. 25/2013 & 26/2013 Page 14/16 Mahender Kumar Saini was sentenced to undergo Simple Imprisonment for a period of six months and to pay a fine of `200/, in default of the payment of said fine to further imprisonment for two days and the factum that the appellant Ramesh Kumar Pandey was sentenced to undergo Simple Imprisonment of one year and fine of `200/, in default of the payment of the said fine, to undergo Simple Imprisonment for two days, the Court is of the considered view that as the appellants have faced the trial and proceedings since 1999 and are apparently lesser beneficiaries of such prurient display, it is considered appropriate to modify the impugned sentence dated 31.08.2013 qua both the appellants and the sentence imposed of Simple Imprisonment for a period of six months and fine of `200/ and in default of payment said fine, to further undergo Simple Imprisonment for two days qua the appellant Mahender Kumar Saini and sentence of Simple Imprisonment for a period of one year and fine of ` 200/, in default of payment of said fine, to undergo Simple Imprisonment for two days qua the appellant Ramesh Kumar Pandey are reduced to Simple Imprisonment for a term not extending three months each and to pay a fine of `200/ and in default of payment of fine, to undergo Simple Imprisonment for two days. The fine is indicated to have already been deposited by the appellants before the learned trial Court. The two appellants are thus directed to be taken into custody to serve the Criminal Appeal Nos. 25/2013 & 26/2013 Page 15/16 sentence as directed hereinabove and are granted benefit of Section 428 Cr.P.C., 1973.
Copy of this Judgment be sent to the learned trial Court alongwith the trial Court record forthwith to be placed there on 14.03.2014 at 02.00 p.m. Copy of this Judgment be supplied to the appellants and the Criminal Appeal Nos. 25/2013 and 26/2013 are disposed off as directed hereinabove, whereby, the conviction of the appellants is upheld and the impugned sentence modified as directed hereinabove and the records thereof be consigned to the Record Room. A copy of this Judgment be placed on the records of Criminal Appeal No.s 25/2013 and Criminal Appeal No. 26/2013.
Announced in the Open Court (Anu Malhotra)
today this the 11th day of District & Sessions Judge
March, 2014 (West) Delhi
Criminal Appeal Nos. 25/2013 & 26/2013 Page 16/16